FILED
NOT FOR PUBLICATION JUL 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM WARREN WIELAND, No. 13-35173
Petitioner - Appellant, D.C. No. 3:10-cv-00059-MA
v.
MEMORANDUM*
S. FRANK THOMPSON,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted July 11, 2014
Portland, Oregon
Before: PAEZ, WATFORD, and OWENS, Circuit Judges.
The state trial court found sufficient evidence to convict William Warren
Wieland under Oregon Revised Statutes section 163.095(2)(e). See Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Under our doubly deferential review, see
Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam), and “viewing the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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evidence in the light most favorable to the prosecution,” Jackson, 443 U.S. at 319,
we conclude that fair-minded jurists could find the State’s evidence sufficient. See
28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
1. A reasonable jury could have found that Wieland committed arson in
1986 based on evidence describing the circumstances of the 1986 fires. The
Wieland family suffered through three fires in 1986, the first two of which
occurred on Mondays. After the second fire, Cindy Wieland and victim Katherine
Kimbrel decided that Kimbrel would sleep in the living room on the next Sunday
night in order to catch the arsonist on Monday morning. Cindy and Kimbrel told
Wieland, as well as friends of the family, about their plan. But the arsonist
thwarted the plan by uncharacteristically setting his next fire—in the locked
house—on a Sunday. A reasonable jury could have inferred that Wieland was the
arsonist based on Wieland’s knowledge of the plan, his access to the locked house,
and his motive to commit arson. After each of the fires, Wieland collected a
substantial insurance recovery.
Wieland’s peculiar reaction to the near-death experience of his wife and
children strengthened the inference that Wieland was the arsonist. After the third
1986 fire, Wieland appeared neither grateful to the passersby who helped save his
family nor emotional about the serious danger and trauma his family had just
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experienced. A reasonable jury could have found that these atypical reactions
implied that Wieland was the arsonist.
2. A reasonable jury could have found that Kimbrel suspected Wieland was
the arsonist. After the third 1986 fire, Kimbrel had a conversation with her pastor
that left him with the impression that Kimbrel “knew what was going on but didn’t
feel like she could talk.” Kimbrel also told longtime friend Julie Raney about the
third fire. In response, Raney said that it seemed like someone was trying to kill
the Wielands, but Kimbrel replied that the real targets were Cindy and the Wieland
children. Raney told Kimbrel to “get out of there,” but Kimbrel replied that she
could not leave Cindy, and Cindy would not leave Wieland. A reasonable jury
could have inferred from this conversation that Kimbrel—by excluding Wieland
from the list of victims and suggesting that Cindy would be safer if she left
him—signaled that Wieland was the perpetrator.
3. A reasonable jury also could have found that Wieland knew Kimbrel
suspected him. In the days prior to the murder, Kimbrel’s demeanor changed.
While she was previously energetic and enthusiastic, she became reserved and
quiet. She read scripture about fear in church, and, as one friend said, Kimbrel
simply “clammed up.” The jury could have inferred that Wieland, who lived with
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Kimbrel at the time, observed the same changes in Kimbrel’s demeanor that her
friends saw.
Evidence of tension between Kimbrel and Wieland also supported the
inference that Wieland knew that Kimbrel suspected him of arson. After the third
fire, the Wielands hired Jeff Starr to help clean and clear the damaged house. Starr
testified that he observed disagreements between Wieland and Kimbrel and that
tension marred their relationship. Starr could not describe the substance of any
specific disagreement, but because he observed this tension shortly before the
murder and after Kimbrel’s stark change in demeanor, the jury could have inferred
that Wieland knew Kimbrel suspected him.
4. Finally, viewed in the light most favorable to the prosecution, a
reasonable jury could have found that Wieland killed Kimbrel to conceal his arson.
First, Wieland had a unique opportunity to commit the murder: When the murder
took place, he and Kimbrel were alone outside the farmhouse. His daughter was
away, his son was occupied watching cartoons in the house, and his wife was
asleep. No employees were on the Wieland property when Kimbrel was murdered.
One employee had been scheduled to work at the time during which the murder
took place, but Wieland called the night before to tell the employee not to come.
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Second, physical evidence discovered at the crime scene implicated
Wieland. Police found a footprint matching Wieland’s boots close to Kimbrel’s
body despite Wieland’s claim that he had not been within 30 feet of the body.
Additionally, trained trackers testified that, based on tracks around Kimbrel’s
body, the murderer had to have come from the direction of Wieland’s house.
Taken in the light most favorable to the prosecution, evidence of the boot print and
the tracks pointed to Wieland as the killer.
Third, years after Wieland sold the farm, the property’s new owner
discovered a knife, the likely murder weapon, in Wieland’s old barn. The knife
had belonged to Kimbrel and was hidden in a pipe in the barn. A reasonable jury
could have inferred from testimony about the knife that the murderer was a
Wieland-family insider with access to the kitchen. The jury could also have
inferred that the same insider stashed the murder weapon in a familiar location on
the Wieland farm.
5. Because Wieland does not raise a colorable federal claim, we need not
address the State’s procedural default argument. See 28 U.S.C. § 2254(b)(2);
Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). We also decline to
address Wieland’s uncertified issues, as he has not made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
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AFFIRMED.